Merits review involves a reconsideration of all aspects of the original decision – law, fact, discretion and policy.
Inquiry into what is the ‘correct (legal) or preferable (just/fair)’ decision: Re Becker v MIEA; Drake v MIEA.
- Stand in shoes of original decision maker;
- Generally inquisitorial (can inform themselves of anything that they want);
- Informal and expeditious process: e.g. AAT Act s33(1)(b) – requiring little formality and expediency – as the
circumstances may permit
- Can be determinative, in that they are able to substituted for the original decision-makers decision
o Judicial review however only considers the legality of a decision – as it is not up to a court to reconsider a
decision for its legality; although it does allow consideration as to whether a decision is ‘unreasonable’.
Pros & Cons:
• Addressing the substance of individual claims, in order to seek the ‘correct or preferable’ decision
• Improve government decision-making
• Provide an accessible and responsible mechanism for the review of a range of grievances
• Enhance the accountability of government
• Reduce demand for judicial intervention, therefore reducing costs
• May be supplanting the role of parliament in keeping executive accountable (technically executive looking at
• May hurt fiscal responsibility – AAT is free from fiscal constraints
• May mean that individuals are favoured over the interests of the wider community
Who Conducts Merits Review:
External boards – such as tribunals, councils, commissions, agencies and authorities
• These boards may also be deciding decisions at first instance, through such matters as town planning, broadcast
licensing and indigenous land claims; likely to have executive and judicial functions.
Internal review: where the government agency making the decision reviews the decision made itself
• Would allow for an expedient, cost-effective, administrative body conscious way of reviewing a decision;
However, may also inflame tensions between applicant and department, discourage good primary decision-
making, or impede formal review.
Merits review and the Separation of Powers:
Merits review said to be quasi-judicial and quasi-executive; HOWEVER bodies which exercise judicial power must be
constituted as a Ch III court.
• Constitutional questions arise where: attempt to confer a decision of the executive tribunals with judicial-like
effect – like where the decision of a Tribunal says it is to take effect as an order of the court: AG v Breckler
What is in issue is the general character of the responsibilities of the AAT?
Not a court – its functions are clearly administrative, so the fact that it has similarities to a court is irrelevant.
Merits Review at STATE vs FEDERAL level;
Commonwealth: Centralised AAT with specialist panels, but shared facilities (e.g. registry), rules etc.
Queensland: Piecemeal approach: number of small specialised tribunals – constantly under review for amalgamating into
a generalist tribunal (like AAT). Administrative Appeals Tribunal (AAT)
ALL SECTIONS REFERRED = AAT Act (Cth).
AAT’s jurisdiction is stated in s25 to include situations where:
Element 1: Enabling Legislation
S25(1) requires a provision in the Act under which the decision is made.
Here, section [?] provides that, ________[e.g. all decisions are reviewable by the AAT].
Element 2: Decision
S25(4) requires a decision to have been made. Decision is defined in section 3(3) and includes, [apply part],
therefore here, _____.
Administrative Appeals Tribunal Act 1975 (Cth), s3(3):
(3) Unless the contrary intention appears, a reference in this Act to a decision includes a reference to:
(i) making, suspending, revoking or refusing to make an order or determination;
(ii) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or
(iii) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(iv) imposing a condition or restriction;
(v) making a declaration, demand or requirement;
(vi) retaining, or refusing to deliver up, an article; or
(vii) doing or refusing to do any other act or thing.
The decision must be an operative determination (Chaney) and can be made exercising the powers given under an
Act (Hales – a decision to try and recover overpayment under social security legislation could be a ‘decision’
under the AAT Act). Here, ______.
N.B. Similarly to in AAT v Bond (although not AAT case) “final or operative and determinative decisions”.
IF no primary decision made:
AAT is not a primary decision maker – there must be a primary decision maker to make the decision: Re
Tradigrain. Here, ________.
EXAMPLE Re Tradigrain
Board made export development grant; Appealed against amount of grant + then Board changed its mind
and asked AAT to order repayment of grant money.
HELD: AAT could not look into that decision on that issue because there was no primary decision made.
IF failure to make a decision:
Failure to make a decision is said to constitute a decision (where duty to make decision + unreasonable
delay): s25. Here, ______.
Also where has been unreasonable delay, the Ombudsman may investigate the complaint, and direct the
complaint to the relevant Tribunal (so long as the Act allows for review by the Tribunal): Ombudsman
Act 1976 (Cth), s10
IF intermediate decision:
Intermediate decision can be reviewed, only where it is provided for under the statute, so that it can be
characterised as a decision under an enactment: AAT v Bond.
IF statutory intention to include as a decision:
Decision gives effect to the statute’s intention, when considering that ‘conduct’, ‘reports’ and
‘recommendations’ can be reviewed: AAT v Bond
EXAMPLE Re Brian Lawlor Administrative official revoked a warehouse license which was issued under relevant statute; It was not clear
under the statute whether the collector of power had the power to revoke the licence; Issue came before Fed Ct –
applicant appealed to AAT.
HELD: FCFCA: Concluded that so long as the executive official had made a decision in purported exercise of
the power in question, then AAT has jurisdiction to entertain the appeal – the applicant does not have to show
that it was valid in the judicial review sense before applying to AAT. Right of appeal activated if decision is
purported exercise of the power in question.
NOTE ALSO: (not covered in lecture)
o Improper belief that they have no power: is reviewable: Deputy Commissioner of Patents v Board of
Control of Michigan Technological University (A failure to grant an extension of time upon applying for
a patent, because of thought of lack of jurisdiction to make the extension, was a decision under the AAT
Act and could be reviewed).
o Invalid exercise of power: is reviewable: Re Brian Lawlor Automotive Pty Ltd and Collector of Customs
(Exercise of power it didn’t have, which was technically a nullity, but still reviewable); Collector of
Customs (NSW) v Brian Lawlor Automotive (a decision that a person was not a fit and proper person to
hold a Customs licence was in excess of authority – where they only had power to revoke it for non-
o Question of an Act’s constitutional validity: the AAT will assume the Act under which the decision is
made is constitutionally valid: Re Adams and the Tax Agents’ Board (Brennan J)
The court will consider the substantive merits of a case, even where there is consideration that the
Act is not valid: Re Reserve Bank of Australia and Comcare
Element 3: Enactment
S25(4) also requires that the decision be made under an enactment. Enactment is defined in S3 to include [apply
part], and thus here, _______.
Administrative Appeals Tribunal Act 1975 (Cth), s3:
(a) an Act;
(b) an Ordinance of a Territory other than the Northern Territory or the Australian Capital Territory; or
(c) an instrument (including rules, regulations or by-laws) made under an Act or under such an Ordinance;
and includes an enactment as amended by another enactment
Element 4: Exhaust Internal Review
Where the Act provides for an internal review procedure, that procedure must be followed first; because the AAT
concerns itself with an operative decision: Re Gee and DG of SS.
IF time limits for internal review have lapsed and there had been no reconsideration because of the
lapsing time limit, that would mean the AAT had no jurisdiction: Re City of Yarra and DAA.
A person ‘whose interests are affected by the decision’ will have standing: s27(1). (Cf. AD(JR) & JR where
“adversely affected”). Interests need not be legal, proprietary or beneficial; but must be more than general
public – ‘real and direct relationship’: Re Control Investments and ABT (No 1). Here, _________.
Where the constitution of the organisation was concerned with the issue, they would have standing: s27(2).
Provided those objects were not too tenuous would be under the Act: Re Control Investments. However group
must have been formed AND obj